United States District Court, N.D. California, San Francisco Division
FINAL PRETRIAL ORDER
BEELER UNITED STATES MAGISTRATE JUDGE
court held a final pretrial conference on June 20, 2019. The
court issues the following pretrial order pursuant to Federal
Rule of Civil Procedure 16(e).
Trial Date and Length of Trial
jury trial will begin on July 8, 2019, in Courtroom B, 15th
Floor, U.S. District Court, 450 Golden Gate Avenue, San
Francisco, California. The trial will last up to five days.
The trial will be held Monday through Friday from 8:30 a.m.
to approximately 1:30 or 2:00 p.m. (or slightly longer to
finish a witness) and will include two fifteen-minute breaks.
Counsel must arrive at 8:15 a.m. to address any issues (such
as objections) before the trial day begins. Once the jury
begins deliberations, it usually stays past 2:00 p.m. Also,
Monday may run the full day and will include jury selection,
opening statements, and two or three witnesses, as the day
side will have 10 hours per side for direct examination of
its witnesses and to cross examine the opposing party's
witnesses, including all objections raised during the trial
day. In addition, each party may have up to 45 minutes for
its opening statement and one hour to close (including
rebuttal closing for the plaintiff).
Procedures During Trial; Exhibit and Witness Lists;
parties should refer to the court's December 16, 2016
Pretrial Order for the court's procedures regarding
the presentation of exhibits, depositions, and witness
testimony during trial. In particular, the court reminds the
parties of its procedures for using deposition
parties will call the witnesses on their separate witness
lists. As discussed at the pretrial conference, if the
parties identify the same witnesses, the defendant will
examine the witnesses when the plaintiff calls them (as
opposed to recalling them).
Claims, Defenses, and Relief Sought 3.1 Plaintiff's
River contends that NetSuite (now owned by Oracle) induced it
to enter into a set of contracts for NetSuite's software
and related services (the “Agreements”) on March
29, 2014, by fraudulently making certain false
representations. The actionable alleged representations that
may form the bases for Grouse River's claims are listed
in the court's order at ECF No. 291.
River dismissed with prejudice its claims for negligent
misrepresentation and breach of contract. Its remaining
claims are for (1) fraudulent misrepresentation (by NetSuite
to induce Grouse River to enter into the Agreements), (2)
fraud in the inducement (of the Agreements), and (3) unfair
or fraudulent practices, in violation of California Business
& Professions Code § 17200.
denies Grouse River's claims. Oracle contends that
NetSuite did not make any false representations to Grouse
River and that NetSuite did not cause Grouse River any harm.
Oracle also contends that Grouse River waived its fraud
claims and failed to mitigate its alleged damages.
River seeks compensatory and punitive damages. Grouse River
and Oracle both seek costs and attorney's fees if they
Grouse River will not introduce certain recorded phone
conversations of NetSuite employees that Grouse River
produced during discovery.
Grouse River will not introduce evidence or argument
regarding communications between Plaintiff's counsel and
Karen Messick, which resolves Oracle's Motion in Limine
Grouse River will not introduce evidence regarding the
compensation or wealth of Oracle's executives, including
Larry Ellison. It is Grouse River's position that this
does not prevent Grouse River from proving that before
NetSuite was acquired by Oracle, NetSuite's executives
were compensated in a manner that motivated them to inflate
revenues by overselling the qualities of its systems and
exhibits produced by a party or by Grant Thornton, Grouse
River's accountant, are presumed to be authentic.
Exhibits listed on the parties' exhibit list are deemed
admitted when mentioned by any party during trial unless
there are previous objections to them.
parties agree that demonstratives (i.e., charts, power point
slides, models, etc. that do not go back into the jury room)
need not be listed on the Trial Exhibit lists.
jury will be given a notebook that includes a glossary, cast
of characters, and chronology, assuming that the parties
agree on a notebook and the court approves it. The court does
not address at this time whether the jury will be given a
list of the actionable alleged representations; the parties
may raise this issue closer to trial or at trial.
Motions in Limine (“MILs”)
reasons stated on the record and below, the court rules as
MIL 1 to Exclude Limitation-of-Liability Provisions -
River moves to exclude the limitations of liability contained
in the Agreements, such as paragraph 10 of the March 30, 2014
NetSuite Subscription Service Agreement. The court denies the
River dismissed its breach-of-contract claim with prejudice
(and also dismissed its claim for negligent
misrepresentation). Its remaining claims sound in fraud or
misrepresentation, and it thus argues that the
limitations-of-liability provisions are irrelevant,
inadmissible, and confusing, given that California courts
refuse to enforce contractual limitations on liability in
cases involving fraud or misrepresentation. As Oracle argues,
however, whether the limitations-of-liability provisions are
legally enforceable as a contractual matter is a separate
question from whether they are factually relevant to Grouse
River's remaining fraud and misrepresentation claims,
including the issue of whether Grouse River's reliance on
any of NetSuite's alleged misrepresentations was
reasonable. Grouse River's cases do not rebut
Oracle's arguments regarding the factual relevance of
these provisions or support its argument that the provisions
should be excluded under Federal Rules of Evidence 401 or
403. Cf. ADT Sec. Servs., Inc. v. Swenson, No.
07-2983 (JRT/AJB), 2011 WL 4396918, at *2-3 (D. Minn. Sept.
21, 2011) (denying motion to redact limitation-of-liability
contract provisions in a misrepresentation case and admitting
into evidence the full, unredacted contract because
“the jury must see the entire Agreement to fairly
determine whether [plaintiff] was fraudulently induced into
signing it and whether she reasonably relied on
[defendant's] representations . . . . [T]he jury must
evaluate whether [plaintiff] would have relied upon
statements allegedly made to her by [defendant], despite the
limitations of liability and other statements in the
discussed at the pretrial conference, the court will instruct
the jury that Grouse River is not bringing a
breach-of-contract claim and that the limitation-of-liability
provisions are not legally applicable to Grouse River's
MIL 2 to Exclude Expert Opinion on Ultimate Issues of Law -
River withdrew this motion in limine.
MIL 3 to Preclude “Prejudicial Statements and
References” - Denied
River moves the court to enter fifteen “rules”
that Grouse River has drafted to govern the conduct of the
trial. The court denies the motion.
purpose of a motion in limine is to admit or preclude
specific [evidence].” M.H. v. Cty. of Alameda,
No. 11-cv-02868-JST, 2015 WL 894758, at *9 (N.D. Cal. Jan. 2,
2015) (citing cases). “To serve th[eir] purposes
effectively, however, motions in limine must identify the
evidence at issue and state with specificity why such
evidence is inadmissible.” Colton Crane Co., LLC v.
Terex Cranes Wilmington, Inc., No. CV 08-8525 PSG
(PJWx), 2010 WL 2035800, at *1 (C.D. Cal. May 19, 2010)
(citing United States v. Cline, 188 F.Supp.2d 1287,
1292 (D. Kan. 2002)). “Additionally, matters of
day-to-day trial logistics, common professional courtesy, and
jury selection are not proper subjects of motions in
limine.” Id. (citing Kelly v. New West
Fed. Sav., 49 Cal.App.4th 659, 671 (1996)).
River does not identify any specific evidence in its motion
in limine and thus provides no basis for the court to make an
in-limine ruling. Cf. M.H., 2015 WL 894758, at *9
(denying motion in limine where “Defendants offer no
examples from which the Court could fashion a ruling”).
Many of Grouse River's requests are procedural or
logistical, not evidentiary, and thus are not the proper
subjects of motions in limine. Cf. Colton Crane,
2010 WL 2035800, at *1. The court's denial of this motion
is without prejudice to either side's objecting to any
evidence or conduct at trial.
MIL 4 to Strike Oracle's Affirmative Defenses -
River moves to strike Oracle's affirmative defenses,
particularly its affirmative defense of waiver. The court
denies the motion.
River filed its motion in limine on May 24, 2019, when the
operative answer was Oracle's answer to Grouse
River's second amended complaint. On May 31, 2019, Grouse
River filed a third amended complaint,  and on June 14,
2019, Oracle filed a new answer. Oracle argues that its new
answer moots Grouse River's motion to strike affirmative
defenses in its old answer. Even if Oracle's answer to
the second amended complaint remained operative, the court
would deny Grouse River's motion. Grouse River's only
argument is that Oracle's affirmative defenses are
insufficiently pleaded. Oracle (or, rather, NetSuite, which
at the time had not yet been acquired by Oracle) filed its
answer and affirmative defenses to the second amended
complaint two-and-a-half years ago. Grouse River never moved to
strike the affirmative defenses. Grouse River
“conducted discovery and prepared its case in the face
of these insufficiently pled defenses. The time for
correcting the injury occasioned by allegedly improperly pled
defenses is past.” Cf. Capplanco Eleven, Inc. v.
Xerox Corp., No. 88 C 9565, 1990 WL 51481, at *1 (N.D.
Ill. Apr. 11, 1990) (denying motion to strike affirmative
defenses as insufficiently pleaded where defendant filed
answer containing affirmative defenses eight months earlier
and plaintiff did not move to strike them until the eve of
MIL 1 to Exclude Evidence Regarding NetSuite's Other
Customers and Lawsuits - Granted in Part
moves to exclude any evidence or argument regarding (1) other
litigation brought against NetSuite or Oracle and (2)
NetSuite's relationships with, or work for, other
customers. It argues that any evidence is improper propensity
evidence under Federal Rule of Evidence 404(b) and in any
event is prejudicial under Federal Rule of Evidence 403. The
court grants the motion in part and excludes (1) evidence or
argument about the fact that NetSuite or Oracle may have been
sued by other customers and (2) Colorado Kayak Supply's
review of NetSuite and news articles about Billabong's
NetSuite implementation. Beyond that, the court declines to
enter an order categorically excluding evidence or argument
about other lawsuits (beyond the fact of lawsuits being
filed) or NetSuite's relationships with or work for other
customers and will address issues in context as they may
arise at trial.
of . . . other act[s] is not admissible to prove a
person's character in order to show that on a particular
occasion the person acted in accordance with the
character.” Fed.R.Evid. 404(b)(1). “This evidence
may be admissible for another purpose, such as proving
motive, opportunity, intent, preparation, plan, knowledge,
identity, absence of mistake, or lack of accident.”
Fed.R.Evid. 404(b)(2). Even if evidence is admissible under
Rule 404(b)(2), “[t]he court may exclude relevant
evidence if its probative value is substantially outweighed
by a danger of one or more of the following: unfair
prejudice, confusing the issues, misleading the jury, undue
delay, wasting time, or needlessly presenting cumulative
evidence.” Fed.R.Evid. 403.
lawsuits: The probative value of other lawsuits against
NetSuite or Oracle is limited, particularly where (as here)
those suits were settled and voluntarily dismissed without
any finding of liability. Cf. Fabric Selection, Inc. v.
NNW Import, Inc., No. 2:16-cv-08558-CAS(MRWx), 2018 WL
1779334, at *7 (C.D. Cal. Apr. 11, 2018) (granting motion in
limine and excluding evidence of other lawsuits where, among
other things, there was no finding of liability in other
lawsuits). By comparison, the potential for unfair prejudice
is significant. Cf. Copart, Inc. v. Sparta Consulting,
Inc., No. 2:14-CV-00046-KJM-CKD, 2018 WL 1871414, at
*7-8 (E.D. Cal. Apr. 19, 2018) (granting motion in limine and
excluding evidence of defendant's disputes with third
parties because of, among other things, “the high risk
the jury will treat the evidence as propensity evidence[, ]
weighed against the relatively low probative value of this
evidence as to [defendant]'s motives or intent in this
case”) (citing Bioriginal Food & Sci. Corp. v.
Biotab Nutraceuticals, Inc., No. 2:13-CV-05704-CAS(Ex),
2015 WL 10733384, at *5 (C.D. Cal. Aug. 24, 2015)).
Additionally, evidence of other lawsuits against NetSuite or
Oracle is likely to confuse issues, mislead the jury, cause
undue delay, and waste time because “the evidence will
spawn collateral mini-trials to disprove or rebut” the
allegations made in those lawsuits. Cf. Id. at *7.
Kayak Supply's review and news articles about
Billabong: In its complaint, Grouse River references a
negative online review by Colorado Kayak Supply's CEO
about his negative experiences with NetSuite's
SuiteCommerce Advanced product, and in its initial
disclosures, it identified NetSuite customers with relevant
information and later sought discovery about one customer,
Billabong. (The court denied discovery.) Oracle moved to
exclude the review and news articles on the ground that they
are irrelevant and inadmissible hearsay. Grouse River states
that it has no plans to introduce the review and news
articles,  and the court thus excludes this evidence,
which in any event is inadmissible hearsay.
the fact of lawsuits being filed against NetSuite or Oracle,
it is possible that evidence of customer complaints may be
permitted under Rule 404(b)(2). The court cannot evaluate
that possibility on this record (or evaluate whether the
evidence is more probative or more prejudicial under Rule
403). Grouse River must make a proffer outside of the
jury's presence ...